Whitfield v Police
[2024] NZHC 2270
•13 August 2024
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2024-425-19 [2024] NZHC 2270
BETWEEN MATHEW JAMES WHITFIELD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 August 2024 Appearances:
T J McCullum for Appellant M B Brownlie for Respondent
Judgment:
13 August 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 13 August 2024 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
WHITFIELD v NEW ZEALAND POLICE [2024] NZHC 2270 [13 August 2024]
Introduction
[1] Matthew Whitfield pleaded guilty to five charges of burglary,1 four charges of theft of motor vehicle,2 11 charges relating to theft (under $500),3 two charges relating to theft (between $500 and $1,000),4 one charge of theft (over $1,000),5 and one charge of unlawful possession of ammunition.6 On 20 February 2024 he was sentenced by Judge Harvey to three years and four months’ imprisonment.
[2] Mr Whitfield now appeals his sentence on the basis the Judge erred in his assessment of mitigating factors and the sentence imposed was manifestly excessive.
The facts
[3] Between 23 February 2023 and 16 March 2023, the appellant committed burglary at three separate residential properties taking various items, including, at the last property, firearms, electronic equipment, jewellery and other property valued at at least $35,000. Two further burglaries were committed on 29 March 2023 of two separate dairies in Gore, although no goods were taken.
[4] Between February 2023 and March 2023, the appellant engaged in a series of thefts. In the main, these were from various Pak’nSave and New World supermarkets. The appellant also stole items from two Farmers department stores. Additionally, the appellant broke into four vehicles stealing radar detectors and other items. Finally, when the police executed a search warrant at an address where the appellant had recently lived, two rounds of 12-gauge shotgun ammunition were located.
Sentencing decision
[5] The Judge began by referring to his sentencing indication where he reached an end sentence of three years and 11 months. That comprised a starting point of three and a half years’ imprisonment for the five charges of burglary, an uplift of
1 Crimes Act 1961, s 231(1)(a). Maximum penalty: 10 years’ imprisonment.
2 Crimes Act 1961, s 219 & 223(c). Maximum penalty: one year’s imprisonment.
3 Crimes Act 1961, s 223(d). Maximum penalty: three months’ imprisonment.
4 Crimes Act 1961, s 219 and 223(c). Maximum penalty: one year’s imprisonment.
5 Crimes Act 1961, s 219 & 223 (b). Maximum penalty: seven years’ imprisonment.
6 Arms Act 1983, s 22B. Maximum penalty: a fine not exceeding $10,000.
18 months for the balance of offending, an uplift of three months for the appellant’s conviction history and then a reduction of 25 per cent for guilty pleas to reach an end sentence of three years and 11 months.
[6] The Judge then noted he had received further information since being the pre-sentence report, the s 27 report, and a psychological report. The Judge emphasised the importance of there being a connection between the offending for which a person appears for sentencing and the content of those reports. The Judge was satisfied there was a connection in this case.
[7] To reflect those matters, the Judge granted a further discount from the sentencing indication of three years and 11 months to reach an end sentence of three years and four months, representing a further discount of a little over 11 per cent from the starting point reached in the sentencing indication of five years and three months.
Law on appeal
[8] This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.7 Otherwise, the Court must dismiss the appeal.8
[9] The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.9 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.10
7 Criminal Procedure Act 2011, s 250(2).
8 Section 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
10 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[10] Ms McCullum, counsel for the appellant, does not object to the starting point but submits the discounts applied by the Judge were insufficient and did not fully account for all mitigating factors pertinent to the appellant’s case. Consequently, Ms McCullum submits the end sentence is manifestly excessive and unduly harsh.
[11] Specifically, Ms McCullum submits in addition to the 25 per cent applied for the guilty plea, the following discounts should have been applied: five per cent for remorse, 15 per cent for background factors, and 10 per cent for addiction.
Respondent’s submissions
[12] Mr Brownlie acknowledges a discount of five per cent was available for remorse. However, in considering the appellant’s background and addiction having a causative contribution to the offending, he submits a discount of 10 per cent was appropriate. As such, the 11 per cent applied by the Judge was within range. This would make an end sentence of three years and one month imprisonment.
Discussion
Remorse
[13] The Court of Appeal in Moses v R11 noted the defendant bears the onus of showing their remorse is genuine and that, whilst it need not be extraordinary to earn a discount, it does require something more than the bare acceptance of responsibility inherent in the plea. In this instance, Ms McCullum submits the appellant was willing to engage in restorative justice which merits an additional five per cent discount. This, says Ms McCullum, demonstrates remorse beyond the appellant’s guilty plea.12
[14] Mr Brownlie, referring to Harris v Police,13 says a willingness to participate in the restorative justice process, unaccompanied by other evidence demonstrating an
11 Moses v R [2020] NZCA 296.
12 Hessell v R [2010] NZSC 135.
13 Harris v Police [2019] NZHC 3044.
offender has taken responsibility for their offending, may mean little. He submits something more is needed to justify a discount of five per cent. Notwithstanding this, he acknowledges there are such indicators in this case. The appellant has shown insight into his offending, expressing remorse and apologising for his actions. The respondent therefore accepts an additional five per cent credit being applied to reflect the appellant’s remorse.
[15] I consider the appellant’s willingness to engage in the restorative justice process, coupled with his clearly expressed remorse in the clinical psychologist’s report, warrants a distinct credit for remorse in the amount of five per cent.
Background factors
[16] The Sentencing Act requires a court to consider the particular circumstances of the offender. As the Supreme Court explained in Berkland,14 understanding an offender’s background allows a court to tailor the sentence to the offender. There may be factors in a person’s background which reduce an offender’s culpability or blameworthiness.15 To be recognised in the end sentence, there must be a link between an offender’s background and the offending.16
[17] While the Judge did not discuss the content of the reports other than to say he had read them, he was satisfied that there is a link between the appellant’s background and the offending, and discounted the sentence accordingly. Nevertheless, Ms McCullum says the discount was insufficient, being only around 11 per cent. She submits a 15 per cent discount is warranted.
[18] Mr Brownlie refers to three cases with s 27 reports similar in content to that of the appellant’s where credit between five and 10 per cent was given for a causative link between the offence and the background factors.17 The key aspects were a history of drug and alcohol addiction, exposure to violence in childhood, association with
14 Berkland v R [2022] NZSC 143; [2022] NZLR 509.
15 At [91].
16 At [109].
17 Blackburn v Police [2023] NZHC 3780 (10 per cent credit); Swinburne v Police [2024] NZHC 619 (10 per cent credit); and Rushton v Police [2023] NZHC 2754 (five per cent credit).
gangs, and a limited education. Given the similar background here, including early introduction to methamphetamine, he says a similar discount is warranted.
[19] The s 27 report and the report from the psychologist indicate the appellant was suspended from school at age 11 and did not return to formal education. Educational underachievement, poor reading skills, and early exit from formal education increases the likelihood of participation in criminal behaviour. Left to his own devices, the appellant spent most of his time in the company of his older brother who had affiliations with the Nomads gang and was a heavy alcohol and substance user. During this time, the appellant witnessed fights, anger, and aggression. Additionally, criminal activities were carried out around him, and he was encouraged to participate. Moreover, I note the appellant has reported he is from a large, impoverished family which normalised theft to supplement food.
[20] There is a wide discretion available to judges in the discount to be afforded for background factors identified in s 27 reports and other such materials. While the cases referred to are of assistance, I consider R v Berkland is the leading authority. In that case the appellant was afforded a 10 per cent discount for an upbringing that involved multiple criminogenic risk factors including poverty, trauma, chaotic home circumstances and poor educational outcomes. Drug and alcohol abuse was a primary coping strategy for Mr Berkland, leading to a methamphetamine addiction in later life. Given this discount governed multiple background factors including Mr Berkland’s drug addiction, it is difficult to see that the 11 per cent discount afforded in the present case was too little.
Addiction
[21] No specific alcohol and drug report was prepared for sentencing. However, the appellant relies on the pre-sentence report, the s 27 report, and the psychologist’s report which all indicate he is a high methamphetamine user. The appellant has said his brother first supplied him with methamphetamine when he was aged 11. He also periodically drank alcohol and used cannabis, hallucinogens, stimulants and prescribed medications. Later, following the death of his brother and the loss of his
daughter (uplifted by Oranga Tamariki), the appellant began using methamphetamine to manage his grief. He subsequently developed a methamphetamine addiction.
[22] Ms McCullum submits the appellant was offending to fund his habit, and I accept this is clearly the case. He was motivated by the need to further his dependence on methamphetamine and the internal pressure to obtain property which would enable him to buy or sell methamphetamine. However, as discussed above, the appellant’s dependence on methamphetamine was linked to his background and it would be artificial in my view to separate the two. The 11 per cent discount given is within range and takes account of the totality of factors which were causatively linked to the offending.
Result
[23] I have found the appellant was entitled to a further credit totalling five per cent for remorse when he was sentenced.
[24] This adjustment results in an end sentence of three years and one month’s imprisonment.
[25] Accordingly, the appeal is allowed. The sentence of three years and four months’ imprisonment is quashed and in its place a sentence of three years and one month is imposed.
Solicitors:
Southern Law, Invercargill Crown Solicitor, Invercargill
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